Constitutional Law Commons^™

Israel Women’S Network V. Government Of Israel, Eliahu Mazza, Itzchak Zamir, Yaakov Kedmi

Translated Opinions

Facts: In 1993, the Government Corporations Law was amended, and s. 18A was added. This section provides that the boards of directors of Government corporations shall have equal representation of men and women, and until such time as this goal is achieved, members of the underrepresented sex should be appointed, ‘to the extent that circumstances allow’ (affirmative action).

After the new section came into effect, and despite the new section, men were appointed in two cases by Government ministers to boards of directors of Government corporations, on which there were no women directors.

The petitioner argued that the appointments were …

The First Amendment's Challenge Function And The Confusion In The Supreme Court's Contemporary Free Exercise Jurisprudence, Marci A. Hamilton

Articles

No abstract provided.

Jurisprudence And Personality In The Work Of John Rawls, David G. Carlson

Articles

The article argues that John Rawls's concept of the person undergoes a significant shift between A Theory of Justice and Political Liberalism, necessitating a corresponding change in jurisprudence. In A Theory of Justice, Rawls employs a "correlative jurisprudence," where law is determinate, complete, and judges merely apply existing law. This approach is tied to a narrow, passive view of personality, treating individuals as mere loci of liberty and rights. In contrast, Political Liberalism presents a dynamic, contradictory conception of the person as a union of moral capacity and a determinate conception of the good. This shift, the article contends, requires …

Apple Of Gold: Constitutionalism In Israel And The United States, Michel Rosenfeld

Articles

No abstract provided.

“Now The Machine Runs Itself”: Carl Schmitt On Hobbes And Kelsen, David Dyzenhaus

Cardozo Law Review

Carl Schmitt claimed that the fundamental distinction of politics is the distinction between friend and enemy. That distinction, he said, has to be put on a substantive basis, which, in the era of the nation state, he supposed must amount to an idea of the homogeneity of the people. Since liberal democracy is opposed to this kind of substance, Schmitt argued that liberalism cannot make the distinction between friend and enemy. It thus cannot defend itself against its enemies. It is no wonder that he remains the leading theorist of fascism.

Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius By Edward De Grazia, Robert M. O'Neil

Cardozo Law Review

Such a headline from the 1990s reminds American readers that, however shameful may have been the treatment of obscenity and pornography in the United States during the past one hundred years, things could have been worse. Even so, the record here is hardly a source of pride-nor does the story have an altogether happy ending, if it has one at all. Yet it is a story that badly needs to be told, and never has it been better told than by Edward de Grazia in Girls Lean Back Everywhere.

Looking For Rights In All The Wrong Places: Resolving Custody Disputes In Divorce Proceedings, Katherine Hunt Federle

Cardozo Law Review

Eleven-year-old Shane P. left the office of his court-appointed law guardian in tears. Already upset by the escalating custody battle between his divorcing parents, Shane told his father that he wanted to "get rid of" his law guardian and subsequently sent her a letter notifying her that she was fired. Influenced, in part, by the case of Gregory K., Shane then retained the services of another attorney with funds provided by his father. Although the trial judge initially ruled that only the court could dismiss the law guardian who had been appointed to represent Shane's best interests, the judge subsequently …

Lev V. Tel-Aviv-Jaffa Rabbinical Court, Aharon Barak, Dov Levin, Shlomo Levin

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitioner 1 and Respondent 3 were in divorce proceedings. In the context of a suit for marital reconciliation filed by Respondent 3, he requested that Respondent 1 prevent Petitioner 1 from leaving the country. His request was granted. Petitioner 1 requested that the order be vacated because her trip was intended as a vacation with her eldest daughter as well as for conducting business …

Dayan V. Wilk, Aharon Barak, Shlomo Levin, Eliezer Goldberg

Translated Opinions

Facts: The petitioner applied for a permit to hold an assembly directly outside the home of Rabbi Ovadya Yosef, spiritual leader of the Shas political party. The District Commissioner of Police refused the permit, because it would violate the rights of privacy of the rabbi, his family and his neighbours.

Held: It is necessary to balance the petitioner’s right to freedom of assembly against the right of privacy of the public figure, his family and his neighbours. According to Vice-President Barak, these rights are of equal importance: in principle there is a right to hold an assembly outside the private …

Hoffman V. Director Of The Western Wall, Menachem Elon, Meir Shamgar, Shlomo Levin

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

Facts:

The two petitions concern the arrangements for prayer in the Western Wall Plaza in Jerusalem.

The Petitioners request to conduct prayer services in the Western Wall Plaza, while carrying Torah scrolls and wearing tallitot [prayer shawls]. The Petitioners in HCJ 257/89 seek to conduct “prayer groups” that read from the Torah. The Petitioners in HCJ 2410/90 represent some one-thousand women who are members …

In Search Of Artistic Excellence: Structural Reform Of The National Endowment For The Arts, Elizabeth E. Degrazia

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Right Of Publicity Gone Wrong: A Case For Privileged Appropriation Of Identity, Fred M. Weiler

Cardozo Arts & Entertainment Law Journal

No abstract provided.

In Memory Of Herbert Tenzer, Norman Lamm

Cardozo Arts & Entertainment Law Journal

No abstract provided.

In Memory Of Herbert Tenzer, Frank J. Macchiarola

Cardozo Arts & Entertainment Law Journal

No abstract provided.

In Memory Of Herbert Tenzer, Lyonel E. Zunz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Introduction, Frank J. Macchiarola

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Federalist Society Roundtable Discussion, Timothy Dyk, Robert Bork, Nadine Strossen, John O. Mcginnis, Theodore B. Olson

Articles

This discussion took place at the National Press Club in Washington, D.C., on October 12, 1993.

Yael Shefer (A Minor) By Her Mother And Natural Guardian, Talila Shefer V. State Of Israel, Menachem Elon, Yaakov Malz, H. Ariel

Translated Opinions

Facts: The appellant, Yael, a minor, was born with the incurable Tay-Sachs disease. When she was two, her mother applied to the District Court for a declaratory judgment that when Yael’s condition worsened, she would be entitled not to receive treatment against her will. The District Court denied the application. An appeal was filed to the Supreme Court, and in September 1988, the Supreme Court denied the appeal, without giving its reasons. When Yael was three years old, she died. The following judgment sets forth the reasons for the aforesaid decision of the Supreme Court, and discusses the right of …

Unfunded Mandates, Hidden Taxation, And The Tenth Amendment: On Public Choice, Public Interest, And Public Services, Edward A. Zelinsky

Articles

Few contemporary issues concern state and local policymakers as intensely as unfunded mandates. Mayors, county executives, city councilmen, and the professional associations representing them routinely argue that the federal and state governments have, in recent years, imposed at an accelerating rate expensive requirements on municipalities without granting corresponding funds for compliance, thereby irresponsibly straining the fiscal capacity of municipalities, hampering their ability to provide essential services, and improperly infringing upon the scope of local control. The complaints of municipal policymakers have provoked a variety of proposals for restraining unfunded mandates: obligatory disclosure of the projected costs of proposed mandates, requirements …

Models Of The Opinion Function Of The Attorney General: A Normative, Descriptive, And Historical Prolegomenon, John O. Mcginnis

Cardozo Law Review

The judiciary is not the only branch of government that offers authoritative constructions of the Constitution and other federal laws. Since the beginning of the Republic, the executive branch has made formal pronouncements on constitutional and statutory issues of such a substantial scope and variety that they rival the opinions of the Supreme Court. A public recording of the executive branch's most authoritative legal voice is contained in forty-three volumes of published opinions of the Attorney General and sixteen volumes of published opinions of the Office of Legal Counsel ("OLC")-the office to which the Attorney General now delegates the great …

Executive Autonomy, Judicial Authority And The Rule Of Law: Reflections On Constitutional Interpretation And The Separation Of Powers, Michel Rosenfeld

Cardozo Law Review

The United States Constitution is remarkably silent on the subject of ultimate responsibility for constitutional interpretation, despite its elaborate prescriptions for a scheme of separation of powers that interweaves elements of independence and of interdependence among the distinct branches of the federal government. It is hardly surprising, therefore, that there have been several disputes between the President and the Supreme Court concerning the scope of executive autonomy in constitutional interpretation. In recent years, moreover, the conflict between judicial authority and executive autonomy has been exacerbated by efforts to legitimize presidential interpretations of the Constitution that are inconsistent with Supreme Court …

The Unitary Executive In A Unified Theory Of Constituional Law: The Problem Of Interpretation, Geoffrey P. Miller

Cardozo Law Review

Among theoretical issues in the area of federal separation of powers, the status of the Unitary Executive may be the most controversial: To what extent does the Constitution establish the President as a national chief executive with ultimate authority over activities of national administration? In this paper, I propose a model of the Unitary Executive which differs in some respects from prior work, including my own work on independent agencies, which I now view as incomplete. The model is grounded in a unified theory of constitutional law-i.e., a theory that includes issues both of rights and of structure within a …

Ways To Think About The Unitary Executive: A Comment On Approaches To Government Structure, Michael Fitts

Cardozo Law Review

Over the past few years public law debates have invariably focused on the relative significance of legal institutions as expressed in formal legislative and administrative structures versus everyday politics in the resolution of policy questions. This emphasis has been particularly evident in the examination of the appropriate structure and distribution of responsibility for administrative decision making, in general, and presidential authority versus agency autonomy, in particular.

Attorney General's Remarks, Benjamin N. Cardozo School Of Law, November 15, 1992, William P. Barr

Cardozo Law Review

While the modem Attorney General is active in a broad array of policy decisions and legal matters, this evening we are concerned only with what was once the core of the Attorney General's duties: legal interpretation within the executive branch. First, I would like to trace the evolution of the office of Attorney General from part-time legal advisor for the new government to head of a major department involved in making policy across a broad range of subjects. Second, I want to discuss the Attorney General's role in interpreting the law, both in rendering legal advice to the executive branch …

Imposing Unified Executive Branch Statutory Interpretation, Michael Herz

Cardozo Law Review

Since the birth of the administrative state, the dominant legal debate about the fourth branch has concerned the powers of the other three to control it. In recent years, the particular focus has been on presidential oversight, in part as a result of the increasingly systematic efforts of every President since Richard Nixon to gain control of the federal bureaucracy. This enormous, and in general, illuminating literature has tended, I think, to overlook two aspects of the problem.

The Merryman Power And The Dilemma Of Autonomous Executive Branch Interpretation, Michael Stokes Paulsen

Cardozo Law Review

Most everybody today concedes some degree of executive branch autonomy in the interpretation of federal law. The examples most frequently given of areas of executive interpretive autonomy involve situations where the President interprets the law incident to the exercise of those constitutional powers that are thought to be exclusively presidential (and thus unreviewable by the courts), such as the pardon and the veto. The President may grant a pardon (it is generally conceded) on legal grounds rejected by the courts. For example, he may issue a pardon based on his opinion that a conviction was unconstitutional, notwithstanding the judiciary's contrary …

The Movement For Quality In Government V. State Of Israel, Meir Shamgar, Aharon Barak, Eliahu Mazza, Dov Levin, Eliezer Goldberg

Translated Opinions

These petitions concern the continued tenure in office of the fourth respondent as a Minister in the Government, after he was charged with accepting a bribe, breach of trust on the part of a public servant, obtaining something by deceit under aggravating circumstances, false entry in corporate documents and stealing by a director

The petitioner in H.C. 4319, 3094/93, argued that proper legal and public norms demand an immediate end to the 4th respondent's tenure of office as a Minister. This petitioner's approach is similar to that of the third respondent, as expressed in his application to the second respondent. …

Bargil V. Government Of Israel, Meir Shamgar, Theodor Or, Eliezer Goldberg

Translated Opinions

The petition asks the court to find the Government’s policy of allowing
Israeli citizens to settle in the occupied territories of Judea, Samaria and the Gaza
Strip to be illegal. The court held that the petition was too general to be justiciable.

Seqra’S Too Valuable To Trash: A Reply To Stewart Sterk, Philip Weinberg

Cardozo Law Review

No abstract provided.

Hatching The Egg: A Child-Centered Perspective On Parents' Rights, Barbara Bennett Woodhouse

Cardozo Law Review

No abstract provided.